Webster-v-Liddington - Doctors' Liability for Misrepresentation

  


Dr Nicholas Braslavsky and Andrew Grantham have been successful in the Court of Appeal in the landmark decision of Webster-v-Liddington [2014] EWCA Civ 560 in which the Court of Appeal held that medical practitioners could be liable in damages for misrepresentation when the content of manufacturer’s literature provided to prospective patients prior to them undergoing treatment was materially false in the absence of an express disclaimer.
The case involved a class action brought by over 50 claimants who alleged that they had been induced to undergo a course of innovative non-surgical cosmetic treatment known as Isolagen. The treatment involved the removal of cells from the patient, cultivating them in bovine calf serum and then re-injecting them into the patient’s face.  The manufacturer’s literature claimed that the process involved the reinjection of only the patient’s own cells.  In fact, there would be small quantities of bovine material.  At first instance HHJ Platts held that the medical practitioners had adopted the content of the literature as their own representations and that the representations were materially incorrect.
On appeal two issues arose.  First, whether the medical practitioners had adopted the content of the literature as their own representations given the absence of any express warranty as to the truth of such statements; and second, whether those representations were materially false given the small quantities of bovine material that would be left in the material injected into the patients.
The Court of Appeal reconsidered the law both concerning the adoption of third party statements and the test for falsity of representations in what is clearly a landmark decision: the implications are potentially extremely serious.  Any person with access to superior information who hands over literature produced by a third party with the objective of inducing a person to contract with him may be liable for the content of that literature in the absence of an express disclaimer.  The motto is clear:  the importance of a suitably worded disclaimer cannot be overstated.”

Note that the question of damages for the claimants is yet to be decided. Nevertheless this judgment may have important ramifications not just for for doctors but for other healthcare professionals and, indeed, non-medical professionals and service providers.   

Clinical Negligence Quantum Updates

Courtesy of Helen Mulholland

CG v NIGDIKAR (2013) AM0202405

Lawtel reference: AM 0202405

Age of Claimant: 29

Injury: Severe blood loss following tooth extraction

Total Damages: £4,000

Damages for Pain, Suffering and Loss of Amenity: £4,000

The Claimant alleged that the Defendant performed an inappropriate extraction, as her INR was unstable. 

The Claimant was said to have experienced pain, discomfort and emotional stress as she had to be hospitalized for three days whilst her bleeding was brought under control. She was rendered anaemic (albeit temporarily) and required additional trips to her GP.

XV v MAYDAY HEALTHCARE NHS TRUST (2012)

Lawtel reference: AM 0202399

Age of Claimant: 31

Injury: wrongful birth claim

Total Damages: £2,300,000

Pain, Suffering and Loss of Amenity: £35,000

The Claimant’s partner’s family had a history of spinal muscular atrophy (SMA) and that she was concerned that her unborn child might have the condition. Although the midwife made a note of this, the Claimant was not offered an appointment with a consultant or any diagnostic test.

The Claimant’s baby was born with congenital spinal muscular atrophy. 

The Claimant’s evidence was that if she had been offered the test, she would have taken it and would have undergone further screening. She asserted that, after counselling, she would have opted to have a termination.

  

BLYTH v (1) NORTHERN LINCS & GOOLE HOSPITALS NHS TRUST (2) UNITED LINCS HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202382

Age of Claimant:, 23

Injury: ectopic pregnancy.

Total Damages: £5,500

Damages for Pain, Suffering and Loss of Amenity: £5,363.75

CS v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2013) 

Lawtel reference: AM0202384

Age of Claimant: 69

Injury: pain and suffering following negligent hip replacement

Total Damages: £75,000

Damages for Pain, Suffering and Loss of Amenity: £35,000

The Claimant was said to have experienced severe pain and discomfort for a period of twelve months prior to revision surgery including numbness in her right side and numerous fallsand to have undergone an unnecessary hip revision.

SPENCER v ONCERIU (2013)

Lawtel reference: AM0202391

Age of Claimant: 60

Injury: tongue laceration during dental procedure

Total Damages: £902

Damages for Pain, Suffering and Loss of Amenity: £750

The duration of the injury was three weeks.

EK v BIRMINGHAM WOMEN'S NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202388

Age of Claimant: 32

Injury: failure to identify and treat internal bleeding and bruising leading to physical symptoms and psychiatric injury

Total Damages: £40,000

Damages for Pain, Suffering and Loss of Amenity: £37,000

The Claimant suffered a delay in internal bleeding being diagnosed and treated. Whilst she was suffering the symptoms of the bleed, she was scared and had a genuine belief that she would die.

PENDLEBURY v F & H (2013)

Lawtel reference: AM0202383

Age of Claimant: 55

Injury: failure to diagnose and treat periodontal disease

Total Damages: £35,000

Damages for Pain, Suffering and Loss of Amenity: £16,000

The Claimant suffered bone loss of 80% in UR5 UR4 UR2 UL4 and UL5. She had to have extractions of several teeth and underwent implant replacement.

TH v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2012)

Lawtel reference: AM0202385

Age of Claimant: 67

Injury: pain and suffering following negligent hip replacement.

Total Damages: £100,000

Damages for Pain, Suffering and Loss of Amenity: £30,000

The Claimant suffered 20 months pain and suffering and had to undergo unnecessary revision surgery.

XXX v BARNET & CHASE FARM HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202374

Age of Claimant: 10

Injury: injuries following a failure to diagnose pneumococcal meningitis

Total Damages: lump sum of £2,900,000 plus periodical payments

Damages for Pain, Suffering and Loss of Amenity: £275,000

The Claimant suffered severe spastic quadriparetic cerebral palsy, epilepsy, sensorineural deafness and significant learning difficulties. The Claimant would require care for the rest of his life.

KA v DERBYSHIRE HEALTH UNITED (2013)

Lawtel reference: AM0202368

Age of Claimant: 22

Injury: injuries arising from failure to diagnose gastric perforation

Total Damages: £80,000

Damages for Pain, Suffering and Loss of Amenity: £40,000

The delay in diagnosis led to complications, including a chest and wound infection. The Claimant also had scarring, psychological injuries, and would potentially experience fertility problems in the future.

TMR v ROYAL DEVON & EXETER NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202371

Age of Claimant: 30

Injury: failure to carry out appendicectomy as part of surgical treatment for ovarian cancer

Total Damages: £8,500

Damages for Pain, Suffering and Loss of Amenity: £7,500

The Claimant underwent a total abdominal hysterectomy and removal of the remaining ovary followed by infra-colic omentectomy and paraaortic node sampling. She had been told that she would also require an appendicectomy But this was not in fact carried out.

The Claimant had to endure a third open surgery procedure, and thereafter spent weeks recuperating from this.

JLH v COUNTY DURHAM & DARLINGTON NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202372

Age of Claimant: N/A (Fatal Claim)

Injury: Post partum haemorrhage, hypothermia, hypovolaemia

Total Damages: £565,000

Damages for Pain, Suffering and Loss of Amenity: £17,000 (est)

At the inquest, the coroner gave a narrative verdict, stating that medical management of the postpartum haemorrhage, subsequent hypothermia and possible hypovolaemia, together with a lack of medical and midwifery communication, contributed to the Deceased’s subsequent medical complications which ultimately led to her death.

Claims were brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.


TH v THE LEEDS TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202370

Age of Claimant: 58

Injury: pressure sore

Total Damages: £25,000

Damages for Pain, Suffering and Loss of Amenity: £23,000

The Claimant received poor post-operative care and developed a pressure sore which was said to be grade 2. It was dressed daily, but developed into a grade 3 lesion. The pressure sore gradually improved, but the Claimant was left with scarring and pain.

JN v (1) EAST CHESHIRE NHS TRUST (2) ST HELENS & KNOWSLEY TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202373

Age of Claimant: 60

Injury: amputation of right leg

Total Damages: £1,100,000

Damages for Pain, Suffering and Loss of Amenity: £100,000

The Claimant was examined in November 2007 in the Defendant’s Emergency Department. She was seen by a senior house officer who did not note the pain in the Claimant’s legs or coldness of her feet (although the Claimant’s son later insisted that both he and C had provided such information). The Claimant claimed that there were further opportunities to identify vascular compromise that were missed.

The case settled without admission of liability.

TCM v WARDLE (2013)

Lawtel reference: AM0202376

Age of Claimant: 73

Injury: tongue laceration

Total Damages: £14,500

Damages for Pain, Suffering and Loss of Amenity: £12,000

The Claimant’s tongue was lacerated during a dental procedure. Liability was denied. The Claimant had permanent symptoms of paraesthesia and some psychological symptoms .

H v ANEURIN BEVAN LOCAL HEALTH BOARD (2013)

Lawtel reference: AM0202378

Age of Claimant: 40

Injury: delay of 11 days in diagnosing ulna fracture leading to surgical intervention

Total Damages: £1,500

Damages for Pain, Suffering and Loss of Amenity: £1,500

A v BEDFORD HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202377

Age of Claimant: 53

Injury: perforated bowel

Total Damages: £54,000

Damages for Pain, Suffering and Loss of Amenity: £35,000

AW v OXFORD UNIVERSITY HOSPITALS NHS TRUST (2012)

Lawtel reference: AM0202367

Age of Claimant: 46

Injury: severe bleeding (caused by administration of excessive heparin) which caused infection in the knee

Total Damages: £196,000

Damages for Pain, Suffering and Loss of Amenity: £40,000

The Claimant had significant knee symptoms for which she underwent a total knee replacement. Tests undertaken prior to surgery were said to confirm that she had antiphospholipid syndrome conferring a thrombotic tendency and that she needed to remain on warfarin for the rest of her life. It was stated that she needed 'good thromboprophylaxis' following a total knee replacement.



When the Claimant was admitted for her left total knee replacement, she underwent a heparin infusion and her records noted UFH 25,000 in 50ml. Following the operation, the heparin was stopped and C was noted to be feeling unwell and faint, and blood was oozing from her wound. C was subsequently transfused four units of blood and was seen by consultants. It was noted that C was feeling faint and light-headed and that there had been lots of fresh oozing from the wound overnight but there was no evidence of compartment syndrome. On investigation, it appeared highly likely that the post-operative syringe driver contained 125,000 units of UFH rather than 25,000 units and this would explain the over anticoagulation and bleeding.

The Claimant suffered pins and needles and blistering in the knee. She underwent blood transfusions. She developed an infection in the with sudden pain, redness and swelling of the left knee and was referred to hospital where she underwent a surgical washout and debridement.

The Defendant admitted breach of duty but disputed causation and the claim was settled. 



SZ v TEACHING HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202398

Age of Claimant: 27

Injury: paraplegia

Total Damages: £2,977,000 lump sum and periodical payments of £100,000 per annum rising to £154,000 after 10 years.

Damages for Pain, Suffering and Loss of Amenity: £220,000 

The Claimant underwent a pancreatic transplant aimed at managing his diabetes. Pain relief was to be managed via a spinal block, but the anaesthetist had difficulty inserting the Tuohy needle. At the third attempt, the Claimant’s spinal cord was damaged, rendering him paraplegic.

Liability was admitted.

The Claimant worked in a builders' merchants on a management trainee programme at the time of his injury. He had always worked in employment of a manual nature. C was therefore at significant disadvantage on the labour market and had failed to hold down any continuous employment at the date of settlement.


The Claimant needed to be urgently rehoused in a council property. Interim damages were thereafter sought to rehouse C in a property more appropriate to his needs.

The settlement was approved by the Court. The full breakdown is available on Lawtel.

NF (ON BEHALF OF THE ESTATE OF X DECEASED) v BLACKPOOL TEACHING HOSPITALS NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202397

Age of Claimant: N/A FAA CLAIM

Injury: pressure sores

Total Damages: £30,000

Damages for Pain, Suffering and Loss of Amenity: £10,000

The Claimant fell and fractured her left humerus whilst an inpatient. She had previously been assessed as having a high risk of falling. She developed several pressure ulcers on her body including one grade two ulcer on her sacrum. Her condition deteriorated and she died.

Cerebral Palsy Claim Defeated at Trial

The Decision of Mr Justice Phillips in the High Court in Aspinall-v-Sec of State for Health [2014] EWHC 1217 (QB)  illustrates the difficulty which can arise for a claimant who relies on inference to prove breach of duty and the limitations of seeking to apply of Bailey-v-MOD, writes Nigel Poole QC.

The case involved allegations of negligence concerning the Claimant's neonatal management in 1982. The Cliamant had been born by Caesarean section at 32 weeks gestation in poor condition. In the first hours of life he was intubated and was noted, at about 0015 hours on the day after birth, to be suffering from metabolic acidosis. He developed hyaline membrane disease and an intraventricular haemorrhage and hydrocephalus with resultant severe cognitive and physical disability.

By the end of the trial, which was on liability only, the sole focus of dispute was on the allegedly negligent failure to detect and rectify a problem with the Claimant's ventilation during a 45 minute period between 2330 hours and 0015 hours, when he was 2-3 hours old. It was common ground that by 0015 hours the Claimant's endotracheal tube had slipped out of position. the Claimant's case was that the seriousness of the Claimant's condition at that time indicated that it was likely that the tube had slipped out of position by 2330 hours after which time some oxygen had reached the Claimant, but not a sufficient amount.

According to the judgment this case arose out of oral evidence from the Claimant's expert. The Judge rejected it for two principal reasons. First, the theory was "no more than speculation, it being more likely that the tube was disturbed" when checks were made at about 0015 hours. Second, the doctor concerned with the Claimant's care (over 30 years previously) said in evidence that she would have been watching the Claimant's breathing on a continual basis and would have noticed if he had ceased to breathe in time with the ventilator.

The Judge was satisfied that the Claimant's deteriorating condition up to 0015 hours was explicable by his condition at birth rather than deprivation of oxygen in the neonatal period. The Claimant could not, in the judge's finding, prove causation on a "but for" analysis. His Counsel relied, in the alternative, on Bailey-v-MOD, contending that the 45 minute period made a material contribution to the subsequent brain damage. the Judge rejected that argument:

"...this is not a case of cumulative agents, where it is impossible to determine whether or not a negligent act caused any injury. In this case the experts have been able to express a clear view as to whether the injury would or would not have occurred in any event and I have found that because of the Claimant's condition at birth, it would have occurred notwithstanding the 45 minute period in question.
"I accordingly hold that, even if the Defendant had been responsible for the worsening of the Claimant's condition between 2330 and 0015 (contrary to my finding above) I would not have found that such matters caused the Claimant's ultimate brain injury."

Bailey-v-MOD will not apply unless medical science cannot answer the but for test one way or the other. If the Court is satisfied that the evidence answers the but for test negatively from the Claimant's point of view, then Bailey-v-MOD does not permit a "second bite at the cherry".

End in Sight for DOLS

The end in sight for DOLS, asks Simon Burrows

In a somewhat damning report the House of Lords Select Committee has recommended a wholesale overhaul of those parts of the Mental Capacity Act 2005 that regulate the detention of mentally incapacitated people in hospitals and care homes. The report – see http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf

is scathing of the badly drafted Schedule A1 to the Act, introduced by the Mental Health Act 2007, which has attracted the title Deprivation of Liberty Safeguards (or DOLS) although this has been seen as a misnomer by many in the relevant professions for some time. As the Committee makes clear, many who should be safeguarded are not and many thousands of incapacitated people may be detained in care homes and hospitals throughout the country with little or no legal safeguards to protect them.

The report comes a week before the Supreme Court hands down its judgment in what has become the seminal case in determining which people who are placed in supported living arrangements and, by implication, hospitals and care homes are in fact deprived of their liberty. It is hoped that P (by the Official Solicitor) v Cheshire West & Chester Council and P & Q (By the Official Solicitor) v Surrey County Council when handed down on Wednesday 19^th March will clarify at least one difficult area that has led to the widespread misunderstanding that the House of Lords finds so prevalent.

Simon Burrows, who acted for P in the Cheshire West case from first instance to the Supreme Court, will provide another note on the judgment on Wednesday morning.

Capacity and Protecting Parties from their Lawyers - Dunhill-v-Burgin

The Supreme Court has given a succinct and clear judgment in the case of Dunhill-v-Burgin [2014] UKSC 18 . writes Nigel Poole QC

In 1999 Ms Dunhill, was a pedestrian when she was struck by a motorcycle driven by the appellant, Mr Burgin. She suffered a severe head injury. In May 2002 she brought a claim for damages and on the day of trial settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for £12,500 plus costs.

In fact Ms Dunhill had suffered very serious injuries and this settlement represented a gross undervalue of her claim (provided she could prove negligence). In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, and an application was made that the consent order should be set aside.

Two preliminary issues arose. What was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. Was it a test of here capacity to litigate in a general sense or was it a test of her capacity to consent to the settlement? Further, what were the consequences if a person lacked capacity but their claim was settled without court approval under CPR Part 21.10. The Defendant did not argue that retrospective approval should be given. In other cases that might very well be a pertinent issue.

The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal disagreed and held that she had to have capacity to conduct the more complicated action which ought to have been brought. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10.

The Supreme Court gave permission to Mr Burgin to appeal against both findings and dismissed the appeals, lady hale giving the judgment of the court. The test properly to be applied was whether Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers which might depend on whether advice given was good or bad. On this test it was common ground that Ms Dunhill lacked that capacity [13-18].

The effect of incapacity
It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhill’s incapacity [22].

Although there was a need for finality in litigation, and the difficulty of re-opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32-33]. Accordingly the consent order must be set aside and the case go for trial [34].

The case appears to leave open the question of whether and in what circumstances it would be right retrospectively to approve a settlement notwithstanding that approval was needed but not obtained at the earlier time. In this case there was a large disparity between the damages recovered and the award which might be recoverable - that might be a salient factor in any future disputed case.

Manchester provided barristers  for both sides in this appeal and the successful solicitors (Potter Rees).

Recent Clinical Negligence Quantum Cases

Links are available for subscribers to Lawtel.                                

JM-v-University Hospital of South Manchester NHS Foundation Trust

Failure to recognise and treat deceased's overdose. Settlement. Reported by C's solicitor. £20,000 total damages. Funeral expenses, bereavement award, consequential expenses, pre-death PSLA. No psychiatric claim by bereaved.

H-v-East Kent Hospitals NHS Trust

Failure to recognise and treat ruptured appendix. Claimant suffered from altered bowel habit, abdominal pain and restriction of social activities. She suffered dysmenorrhoea controlled by medication. She had increased risk of infertility and incisional hernia. Settlement. Reported by C's solicitor. Damages for PSLA £45,000. Total damages £115,000.

Boyle-v-NW London Hospitals NHS Trust 

Negligent surgery leading to leak of bowel anastomosis causing ischaemia. Permanent colostomy and massive incisional hernias as well as generalised distension of abdomen and extensive surgical scarring and skin graft. Settlement. Reported by C's solicitor. Total damages £290,000. PSLA £60,000.

H-v-Bradford Teaching Hospitals NHS Trust
Septic arthritis in ankle unrecognised and untreated resulting in below knee amputation and kyphosis of spine (causation of kyphosis disputed). Settlement. Reported by C's solicitors. Total damages £1.5m. PSLA £150,000.

L-v-Shrewsbury and Telford Hospital NHS Trust

Negligently performed endoscopy causing perforation of oesophagus and pharyngeal puch and surgical emphysema. Subsequent dryness of throat, episode of choking, general throat awareness and apprehension. Settlement. Reported by C's solicitor. Total damages £26,000. PSLA £19,000.

Client's Incapacity and Solicitor's Retainer

Matthew Smith of Kings Chambers reports on the recent decision in Blankley-v-Central Manchester.


A recent High Court appeal has determined that a solicitor's retainer is not automatically determined by the loss of mental capacity of the client. In the judgment, Phillips J held that, whilst Yonge v Toynbee  [1910] 1 K.B. 215 is long accepted authority that a solicitor's authority automatically and immediately determines upon the loss of capacity of the client, that does not equate to a frustration of the entire retainer. In that regard, the judge disapproved the earlier conclusion of Chief Costs Judge Hurst in Findley v Barrington Jones [2009] EWHC 90130 (costs) that the retainer was frustrated.

In Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB) (05 February 2014), Phillips J noted that if frustration occurred, any appointed deputy would have to incept a new retainer. In certain circumstances, of course, that could result in the loss of ability to recover additional liabilities from the losing party where the client had previously been funded by way of a CFA..

The judge likened the situation to one where an employee is temporarily incapacitated or where a company is temporarily unable to provide instructions due to a temporary absence of directors able to provide instruction. So long as the hiatus is dealt with sufficiently swiftly, the contract survives. In Blankley, the claimant had lost capacity on 9 February 2007 and authority was restored through the appointment of a (then) receiver whose application for appointment was dated the 26th of Feburary 2007.

Clearly, in order to preserve a retainer in a similar situation swift action is necessary especially as there can be occasions where there can be some delay between loss of capacity and a retained solicitors discovery of that fact.


Matthew was instructed on behalf of the Defendant by David Abraham at Clyde & Co. 

Guidance on Pre Inquest Review Hearings

In Ernest Andrew Brown (Claimant) v HM Coroner for Norfolk (Defendant)& Chief Constable of Norfolk (Interested Party) [2014] EWHC 187 (admin), the High Court (Pitchford LJ and HHJ Thornton QC (Chief Coroner for England and Wales) gave guidance to Coroners on the handling of pre-inquest review hearings (“PIRs”), writes Rachel Galloway of Kings Healthcare Team.

The Claimant (the stepfather of the deceased) made an application under s 13(1)(b) of the Coroners Act 1988 (as amended) for an order that an inquest into the death of Joanne Foreman be quashed and a fresh investigation be held. 

It was common ground that the police investigation into the circumstances of Ms Foreman’s death was inadequate.  At inquest, the coroner was unable to find the cause of death and recorded a narrative verdict accordingly.  The PIR proceeded upon the assumption that although the precise cause of death could not be ascertained, the self-ingestion of insulin and alcohol may well have been the cause (a view put forward by an expert).  After the full inquest had concluded it became apparent that this assumption was incorrect.  The Paramedic team who attended upon the deceased had taken a blood glucose analysis and the reading was found to be entirely normal.  This reading had not been brought to the expert’s attention and expert evidence was subsequently obtained which concluded that insulin had played no significant role on the deceased’s death.

It was held that as a result of the blood sugar finding by the paramedics not being available to the Coroner, the medical side of the investigation into the death of Joanne had set off on the wrong track and never got back on track.  The absence of the finding was so significant that it was desirable and in the interests of justice that a fresh investigation and inquest be held.

However, HHJ Thornton QC went on to give some wider guidance to Coroners on the handling of PIRs.  He endeavoured to identify “potential pitfalls” which could be avoided by good practice.

He noted that the status of the PIR is now enshrined in Rule 6 of the Coroners (Inquest) Rules 2013 (which came into force from the 25^th July 2013 for investigations started before and since).  Rule 6 permits the Coroner to hold a PIR ‘at any time during the course of an investigation and before an inquest’.  Rule 26 of the 2013 Rules requires a coroner to make and keep a recording of a PIR hearing.  In the present case, large parts of the recording was not available due to apparent equipment failure.  HHJ Thornton QC stated at paragraph 38 of the Judgment (in respect of Rule 26):

“This requirement means that a coroner conducting such a hearing should take reasonable steps to ensure that the recording equipment is working well and that those who speak in court do so in such a way that the recording can be transcribed with accuracy and in full.  An incomplete transcript is not helpful.  It may open the door (as in this case) to allegations of tampering and deliberate and fraudulent removal of key questions and answers”. 

Further, HHJ Thornton QC made the following points:

(1)          In each case the Coroner should ensure that all interested persons (particularly bereaved families) have sufficient notice of the matters to be discussed at the PIR (where held);

(2)        Coroners should provide a written agenda in advance and, if appropriate, express provisional views so that agreement or opposition can be expressed;

(3)          The agenda should include:

(a)  A list of interested persons;

(b)  A proposed list of witnesses identifying those who may be called and those whose statements may be read;

(c)   The issues to be considered at the inquest;

(d)  The scope of the evidence;

(e)  Whether a jury will be required;

(f)    Whether Article 2 is engaged;

(g)  Any issues of disclosure;

(h)  The date of the final hearing;

(i)    Any other relevant matters. 

(4)          In a complex or difficult investigation, Interested Persons should be invited to respond to the Coroner’s agenda in advance of the PIR hearing in writing, stating what they agree with and what they do not agree with;

(5)          The Coroner should ensure that Interested Persons (particularly those unrepresented) have sufficient disclosure of the relevant statements and documents before the PIR hearing so as to be able to address the agenda on an informed basis (in the present case, HHJ Thornton QC was concerned that the Claimant may not have had access to the Post Mortem Report or the Toxicology Reports prior to the PIR hearing);

(6)          Coroners should avoid giving the impression at a PIR hearing (and in any documentation supplied before it) that the findings and conclusions of the inquest are in any way pre-determined, even when the evidence points substantially in one direction.  It may be necessary to explain in clear language to unrepresented families that there is a difference between seeking to identify the key issues and coming to a final conclusions;

(7)          Coroners should at all times take care in their dealings with interested parties not to give the impression of bias or favouritism.  It appears that the Claimant and his wife had overheard the Coroner and Police discussing the deceased prior to the commencement of the PIR hearing.  The Claimant asserted that he had overheard the Detective Chief Inspector referring to the deceased as aggressive, suicidal and drunk and describing the Claimant as difficult.  HHJ Thornton QC stated that Coroners may need to communicate with police officers investigating on their behalf, but their communications, whether oral or written, should be made in such a way that they will not engender concern to others that their interests are being treated as secondary;

(8)          Coroners should be careful in correspondence with an Interested Person, such as the police, not to appear too familiar or too close to the correspondent and not encourage the same from the correspondent, even though the Coroner may know the correspondent well during the course of coroner work.  He goes on: “Even the use of first names may not look good to an outsider, particularly to somebody of the older generation”;

(9)          Coroners should only write letters (and emails) in the course of their work which will stand the test of looking fair and unbiased if and when read out in court in litigation. 

Report by Rachel Galloway

Neglect Verdict at Article 2 Inquest into Suicide of Voluntary Patient

Kings Healthcare member, Rachel Galloway (instructed by JMW Solicitors), has recently represented the family at an inquest into the death of a voluntary mental patient.  








S had been admitted to the SAFIRE unit in Park House at North Manchester General Hospital.

After a 4 week (Article 2) inquest, the jury found that S had taken her own life whilst the balance of her mind was disturbed and that her death was contributed to by neglect.  The jury found that S suffered from schizophrenia and a personality disorder; she experienced auditory hallucinations.  S was assessed as being too high risk for continued care within the community and a Psychiatrist indicated that urgent inpatient treatment was required.  There was a delay in finding her a bed and S was not admitted to hospital for a further 8 days.  S accepted that she needed inpatient care and therefore she was not sectioned under the Mental Health Act.  She was not clerked in or seen by a doctor at any point during her stay.  She was commenced on "general observations".  

The jury found that she should have been put on "within arm's length" observations.  Within less than 48 hours of being admitted to hospital, S was found in a toilet having used a ligature to end her life.  In the afternoon before her death, she had handed into staff a ligature and a lighter and told them that she was hearing voices telling her to kill herself; these voices were increasingly difficult to resist.  Despite this, the level of observations was not increased.  When D was found with the ligature around her neck, ligature cutters could not be found and there were additional failures in respect of equipment.  However, it could not be said that her death would have been prevented had the ligature been removed earlier.  

The jury were specifically asked to consider the events which took place during the afternoon prior to S taking her own life and consider whether or not the care that had been provided amounted to a gross failure to provide basic medical attention to a person in a dependent position that was directly connected to her death.  The jury found that there had been such a gross failure and "neglect" was found accordingly. 

New Clinical Negligence Model Direction

A new model direction has been approved for use in High Court clinical negligence cases.

Master Cook announced, with the approval of the Master of the Rolls, an addition to the model directions for use in High Court clinical negligence cases. It is as follows:

"The parties may, by prior agreement in writing, extend the time for directions, in the Order dated xxxxxx, by up to 28 days and without the need to apply to Court. Beyond that 28 day period, any agreed extension of time must be submitted to the Court by email including a brief explanation of the reasons, confirmation that it will not prejudice any hearing date and with a draft Consent Order in word format. The Court will then consider whether a formal Application and Hearing is necessary."

This is not directly applicable to district registries nor in the County Court, but practitioners may well wish to deploy it in draft directions.. What is good enough for the High Court in the RCJ is surely good enough for Burnley County Court or the Birmingham District Registry.

Following the Court of Appeal’s decision in Mitchell-v-News Corp and Mr Justice Turner's judgment in MA Lloyd litigators were concerned that any delay in complying with court directions, even if an extension had been agreed with the other parties, could lead to dire consequences. This model direction, if now widely followed, will provide some scope for sensible practitioners to co-operate without having to spend time making repeated court applications. 

Sex and Secrecy

Kings Healthcare member, Adam Fullwood has recently appeared in two important cases involving the Court of Protection.

In IM-v-LM and AB & Liverpool City Council [2014] EWCA Civ 37 the Court of Appeal carried out a comprehensive review of the case law in relation to the question of capacity to consent to sex. The Court unanimously concluded that the test for determining capacity to engage in sexual relations was not "person specific" but required a much simpler issue or situation specific approach.

In RC-v-CC & X Locatl Authority [2014] EWHC 131 (COP) the President of the Court of Protection, Lord Justice Munby confirms that the test for disclosure is whether it is "strictly necessary" to deny disclosure as opposed to whether disclosure is strictly necessary. He also questioned the suggestion that disclosure could properly be made to counsel only.